The Briefing by Weintraub Tobin

Legal experts Scott Hervey and Jamie Lincenberg discuss Scarlett Johansson's claims against Chat GPT's voice of Sky, exploring potential legal claims and the intricacies of voice rights in AI.

Legal experts Scott Hervey and Jamie Lincenberg from Weintraub Tobin discuss the Hayden vs. 2K Games copyright dispute, highlighting the court's favorable decision for video game publishers. They explore the implications for athletes, celebrities, and the video game industry, contrasting past cases and addressing the complexities of tattoo copyright in the entertainment realm.

Paramount triumphs in the Top Gun Maverick copyright case. Join Scott Hervey and Jamie Lincenberg of Weintraub Tobin on ‘The Briefing’ as they dissect the court’s ruling. Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here. Show Notes: Scott Paramount was finally able to shoot down Ehud Yonay’s copyright infringement lawsuit, which alleged that Top Gun Maverick, the sequel to the popular 1986 motion picture Top Gun, infringed the copyright in his magazine article. The district Court granted Paramount’s motion for summary judgment and dismissed Yonay’s complaint. I’m Scott Hervey from Weintraub Tobin, and I’m here today with Jamie Lincenberg from Weintraub Tobin and we’re going to talk about the Court’s ruling on this installment of “The Briefing.” Jamie, welcome back to “The Briefing.”   Jamie Thanks for having me today, Scott.   Scott Great. Well, first, let’s get into the facts of the case a little bit. So, in May 1983, California Magazine published the article Top Guns by Ehud Yonay. This article was an inside look at the real Navy fighter’s weapons school, Top Gun, based out of Miramar, California. The article begins with a vivid description of two Top Gun F-14 Tomcat aviators, Yogi and Possum, on a hop, a simulated dogfight training against two Top Gun instructors. Then, the article continues with a deep dive into what makes Yogi and Possum and the other fighter pilots at Top Gun tick. A look at the Top Gun training regimen, what life on the base is like, and the history of Top Gun. When the article was published, it was optioned. In the credits for Top Gun, Yonay is credited in the original movie as the writer of the magazine article.   Jamie On January 23rd, 2018, the Yonays properly availed themselves of their right to recover the copyright to the story optioned by Paramount by sending Paramount a statutory notice of termination under the Copyright Act, and then filed it with the Copyright Office. As we have discussed previously on this program, Section 203 of the Copyright Act permits authors or their successors to terminate grants of copyright assignments and licenses that were made on or after January 1, 1978, when certain conditions have been met. Upon the effective date of termination, all rights in the work that were covered by the terminated grant revert to the author. However, any derivative work prepared under the authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination. But this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant. The Yonays sued Paramount for copyright infringement, claiming that the Top Gun Maverick infringes that Yonays rite in their original article.   Scott In Paramount’s motion for summary judgment, the court took into account expert testimony of both parties. The court found that the plaintiff’s expert testimony was unhelpful and inadmissible because that expert failed to filter out the elements of the article and the sequel that are not protectable by copyright law.   Jamie In order to state a claim for infringement, a plaintiff must show substantial similarity between the work’s protected elements. Determining whether works are substantially similar involves a two-part analysis consisting of, one, the extrinsic test and two, the intrinsic test. The extrinsic test assesses the objective similarities of the two works, focusing only on those protectable elements of the plaintiff’s expression. Whereas, on the other hand, the intrinsic test examines an ordinary person’s subjective impressions. Although a plaintiff must prove both to establish substantial similarity, a finding of substantial similarity under the extrinsic component is a necessary prerequisite to considering the intrinsic component, which is expressly reserved for the jury. As such, on a motion to dismiss, the court will only consider the extrinsic test, and the extrinsic test can end a plaintiff’s infringement case only when the similarities between the works are either wholly due to unprotected elements or where the amount of similar protected expression is de minimis as a matter of law.   Scott In applying the extrinsic test and by filtering out the elements that are not protected under copyright law, that is, facts, ideas, sans affair, which are situations and incidents that flow necessarily or naturally from a basic plot line or plot premise. And stock elements, the two works are not substantially similar. The plaintiffs contended that the article and the sequel were substantially similar because they have similar plots, sequences of events, pacing, themes, moods, dialogs, characters, and settings. Paramount contended that the similarities identified by the Yonays were either not similarities at all or were similarities based on unprotected elements of the work. The court agreed with Paramount.   Jamie The court found that any similarities between the article and the sequel were due either to the inclusion of unprotectable facts, general plot ideas, or sans affair. The fact that both the article and the sequel contain Top Gun instructors and graduate fighter pilots is not actionable since those are factual elements and are not protected by copyright. The fact that the article and the sequel are similar because they depict or describe fighter pilots landing on an aircraft carrier being shot down while flying and cruising at a bar is a showing of familiar stock scenes or sans affair.   Scott The court also found significant portions of the article and the movie dissimilar. The themes and the moods of the two works are dissimilar, as is the dialog and the selection and arrangement of elements, including the unprotectible elements. The court found those to all be dissimilar.   Jamie The selection and arrangement analysis that Scott just noted goes back to Feist, the telephone book case, where a combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.   Scott That’s right. The court here found that the selection and arrangement of the unprotectable elements were not necessarily original enough or not substantially similar enough. Not just that they were not original enough but that they were not substantially similar. Additionally, the court noted that the dialog in the article is unprotectable in any event since the dialog itself is a historical fact. In summing up the court’s objective comparison of the works, the article and Top Gun Maverick, their respective plots, their sequence of events, their pacing, their themes, their moods, their dialog, and their characters, the court found that the two works are not substantially similar. And while the article and Top Gun Maverick have some similarities, those similarities are all based on unprotected elements.   Jamie So, wrap this up for us, Scott. What’s our takeaway from this lawsuit?   Scott So, first takeaway is the importance of expert opinion. And we really just touched on this for a moment, but it did loom large in the court’s opinion itself. Once a copyright case gets past the pleading stage, in the Ninth Circuit, at least, It really becomes a war of the experts on the battleground of substantial similarity, like how I kept to the military theme there. The second is that historical source material can be tricky. While the positive side for the producer is that your work won’t necessarily infringe on the source material, the negative side is that another work based on the same historical source material might not infringe on your work either.   Jamie Thanks, Scott. There are definitely more of these lawsuits on the horizon, so I’m sure you will keep a pulse on those, and we’ll see where these go.   Scott We will. We’ll definitely track these termination lawsuits because they’ll definitely be interesting. Thanks, Jamie, for joining me today.   Jamie Thank you.   Scott Thank you for listening to this episode of The Briefing. We hope you enjoyed it. If you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. If you have any questions about the topics we covered today, please leave us a comment.

Unraveling the threads of Fair Use and how recent legal rulings threaten documentary filmmakers.  Join Scott Hervey and Jamie Lincenberg as they dissect the Tenth Circuit’s Impact on filmmaking in this episode of ‘The Briefing.’ Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here. Show Notes: Scott Leading up to the Supreme Court’s decision in Andy Warhol Foundation versus Goldsmith, there was significant concern by documentary filmmakers about how the Court’s decision in favor of Goldsmith could upend how those filmmakers make use of fair use as part of the filmmaking process. Now, in light of the Tenth Circuit recent application of the Warhol case in Timothy Seppi versus Netflix, filmmakers are again concerned and are calling for a rehearing or an inbound rehearing. If left uncheck, the Motion Picture Association said that this decision threatens to severely impair the ability of filmmakers and other creators to create documentaries, docudramas, biographies, and other works based on the real world. I am Scott Hervey from Weintraub Tobin, and today I’m joined by my colleague, Jamie Lincenberg. We are going to talk about the Tenth Circuit’s controversial decision in Seppi versus Netflix. On this installment of “The Briefing.” Jamie, welcome back to “The Briefing.”   Jamie Thanks for having me, Scott.   Scott For a while now, I have expressed some concern that the Warhol case does, in fact, remove a fair use basis that filmmakers have relied on for quite some time. The use of a third-party clip or third-party content as a biographical anchor. That is, quoting copyrighted works of popular culture to illustrate an argument or point, and the use of copyrighted material in a historical sequence. Those have been used for a very long time by filmmakers, and they’ve been regarded as a best practice in fair use.   Jamie Right. A great example of what a biographical anchor looks like comes from the of Hofheinz first A&E Television Networks, where the court found that a TV biography that used a short clip of movie star Peter Graves from one of his earliest films was justified, not because it commented on the original film, but because it enabled the viewer to understand the actor’s modest beginnings in the film business.   Scott That’s right. The Tenth Circus decision in Seppi runs the risk of forever reversing decades of jurisprudence. Seppi, some facts of the case. Seppi was a former Zoom employee who livestream the funeral of the husband of Joe Exotic. Joe Exotic, Tiger King, right? Everybody knows Joe Exotic and Tiger King. Netflix used a one-minute portion of the funeral video in its series, Tiger King. Netflix tried to dismiss Seppi’s infringement claim based on fair use, specifically based on the biographical anchor claim or jurisprudence. Post-war hall in determining fair use, courts ask, as part of the first factor, whether and to what extent the use at issue has a purpose or character different from the original and whether that supports a justification for copying. Now, the appeals court granted Seppi’s opposition to Netflix’s motion, finding that Netflix’s use was not transformative under the first fair use factor since it did not criticize or comment on the work itself, meaning the video that Seppi filmed, but instead was used to comment on and criticize Joe Exotic.   Jamie The concerns from the parties that filed briefs requesting review of this decision all express concern that the Tenth Circuit, whether it was intentional or not, has created a bright line comment on requirement and is not examining other justifiable uses beyond criticism or commentary.   Scott That’s right. Left as is, there is a concern that this opinion will negatively impact filmmakers who use third-party content for historical value and newsworthiness, even though they do not target the underlying third-party content through criticism or commentary. A number of the amicus brief cite past cases supporting the use of third-party content by a biographer or a filmmaker as a biographical or historical anchor. These cases include Time, Inc. Versus Bernard Geis Associates, which involved the use of sketches of President Kennedy’s assassination that were taken from the famous Zapruder films, Bill Graham Archives versus Dorian Kindersley, which involved the use of Grateful Dead concert posters in a book about the history of the band. Sofa Entertainment versus Dodger Productions, which involved the use of a short clip from the Ed Sullivan show in a musical about the band, The Four Seasons, and Elvis Presley enterprises versus Passport Video, which used television clips featuring Elvis. While the funeral scene in Tiger King isn’t as significant as President Kennedy’s assassination, and while Joe Exotic doesn’t have the same cultural significance as The Grateful Dead or Elvis, the funeral does bear on an issue of public interest. And the funeral clip did serve as a historical marker and biographical anchor in the Netflix program Tiger King.   Jamie This uncertainty isn’t good for documentarians or the consuming public that enjoys these compelling documentaries.   Scott No, Jamie, it certainly isn’t. I do think that the Tenth Circuit needs to reexamine its opinion, either as a rehearing or a rehearing in bonk, because left unexamined, I think this may be the beginning of the end of the ability to use the biographical anchor Exemption under fair use, essentially.   Jamie Yeah. For so many reasons, that would be a huge concern to the documentary space and to many of our clients who work in that area, and we advise them on fair use, and this is definitely going to dictate how we advise our clients.   Scott Yeah. As a practical matter, as a practical matter, it really can end up prohibiting a documentarian from telling a story. If they are unable to express a fact, if they’re unable to explain how a fact or an event occurred in a compelling manner without paying an exorbitant license fee, they may be priced out of their ability to make their documentary, or they may not be able to tell their story in a way that would capture the viewer’s attention. Either way, I don’t think that this ruling really encourages the evolution of creative arts. It doesn’t encourage the reuse of works in a different and compelling and entertaining manner. I think it stymies creativity and puts unnecessary roadblocks in front of storytellers who sometimes need to be able to use existing material in a different way to tell their stories.   Jamie Yes, we will definitely follow along and see where this ends up.   Scott We have an update in the case of Seppi versus Netflix. The day after we recorded the main portion of this episode, the portion you just listened to, the Tenth Circuit vacated its March 27, 2024 judgment and granted Netflix’s request for a rehearing. As part of the rehearing, the court asked for a supplemental briefing and oral argument on the questions of whether the principles of fair use jurisprudence that relate to documentary filmmaking, including the use of content as historical markers, are appropriate in light of, in this case, Netflix’s commercial use of the film clip, and what impact does the Warhol decision in general have on the fair use jurisprudence applicable to documentary filmmaking? So maybe the use of third-party content in documentaries as a historical marker or a biographical anchor is not that. We’ll wait and see what the Tenth Circuit does in light of this rehearing.   Jamie Thank you for listening to this episode of “The Briefing.” We really hope you enjoyed the episode. If you did, please remember to subscribe, leave us a review, and share the episode with your friends and colleagues. If you have any questions about the topics we covered, please leave us a comment.

Update on Rachel Williams’ defamation lawsuit against Netflix’s “Inventing Anna.” Weintraub lawyers Scott Hervey and Jamie Lincenberg discuss the recent court ruling as a warning for docudrama producers on “The Briefing.” Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here. Show Notes: Scott We have an update on the defamation lawsuit brought by Rachel Williams, the Vanity Fair photo editor whose friendship with Anna Delvey, who passed herself off as German heiress Anna Sorkin, was featured in the Netflix series Inventing Anna. The news is not great for Netflix, and this should be a warning for producers of docudramas who take creative license with facts. I’m Scott Hervey from Weintraub Tobin, and today, I’m joined by fellow Weintraub lawyer Jamie Lincenberg. We are going to review this lawsuit, the recent court ruling not allowing Netflix to get out from under William’s defamation claim, and talk about how this should be a concern for producers of the genre du jour docudramas on today’s installment of “The Briefing” by Weintraub Tobin. Jamie, welcome back to “The Briefing.”   Jamie Thanks for having me today, Scott.   Scott So, let’s jump right into this. For those who may not remember, Rachel Williams is a real person. At the time of her portrayal in the Netflix program Inventing Anna, she was a Vanity Fair photo editor and a friend to Anna Delvey, also known as Anna Sorkin. Williams did not come across well in inventing Anna.   Jamie No, she didn’t. She comes across as a privileged freeloader who sponges off of Sorkin and then abandons her when her real situation comes to life.   Scott True, true. She does come across that way. As a result, Williams sued for defamation. Now, in order to prevail, she would have to demonstrate that her portrayal in inventing Anna was an assertion of fact was actually false or created a false impression about her, that it was highly offensive to a reasonable person or was defamatory. Since Williams is a public figure, she published a story in Vanity Fair and published a book about her experience with Sorkin; she must also prove by clear and convincing evidence the statements were made with actual malice, meaning that the defendants knew that the statements were false or had serious doubts about the truth of the statement.   Jamie There are numerous instances of William’s portrayal in this series, she claims to be actionable. We recently reran the podcast episode where you first reported on this lawsuit, where you covered all of the instances in detail. So, there’s no need to do that here. Instead, let’s look at the two portrayals addressed by the court in denying Netflix’s motion to dismiss. Both of those have to do with the scene in Morocco where Williams leaves.   Scott That’s right. The first portrayal comes after several scenes depicting the problems with the credit cards at the hotel and a very expensive private museum tour. Williams tells Anna, who is portrayed as being alone in her room, drinking and heavily depressed, that she is leaving. Sorkin is portrayed as begging Williams not to leave her, but Williams leaves anyways. Now, the next portrayal is the following statements that’s made by another character in Inventing Anna. This character says, “Please, Rachel abandoned Anna, kicked her when she was down, and left her alone in some foreign country. Rachel’s happy to call herself Anna’s friend when it means free ‘stuff’ trips to Morocco. But as soon as times got tough, some friend.” actually, the character didn’t say “tough” or “stuff,” she said some expletive that we won’t use here on the pod. So according to the complaint, Williams alleges that these statements are false, as Williams had a pre-existing business meeting in France. And Williams told Sorkin, prior to the pair heading to Morocco, that she would have to leave early. Also, according to the complaint, when Williams left Morocco, Sorkin was not sad, was not depressed, and was not alone. Williams alleges that those statements in those scenes are defamatory because Williams is falsely portrayed as a fair-weather friend who abandoned Sorkin when she was alone, depressed, and in trouble in Morocco and needed help and support. Williams claims that these are negative personal traits or attitudes that she does not hold.   Jamie The court does agree that Williams plausibly alleged that both of these statements are false statements of fact and are defamatory. Netflix tried to argue that the statements were substantially true because Williams actually left Morocco before Sorkin to go to France, and before knowing Sorkin was a fraud, Williams had also decided to give the relationship some space. But the court didn’t buy it or the argument that other scenes in the series portraying Williams as a true friend, somehow make these two portrayals not defamatory.   Scott That’s right. The court states that in context, these other scenes, which make Williams look like a true friend, do not nullify the portrayal of Williams leaving Sorkin in a troubled state, nor do they rectify the potentially defamatory nature of these two portrayals. Based on the finding that Williams had properly pled a defamation claim based on these two statements, the court said it did not need to decide whether any of the remaining allegedly defamatory statements were actionable. Now, remember, this is just a motion to dismiss where the court examines whether the complaint includes sufficient factual allegations to state a possible claim for defamation and it left the examination of these other statements for later action in the case.   Jamie Right. But the result is that this case goes forward into discovery, which is not only time-consuming but expensive and William’s leverage and the potential settlement value just went up significantly, I would say.   Scott Yeah, I agree with that assessment.   Scott As we’ve seen with other docu-drama defamation cases, one of the big risk points seems to be when a producer fictionalizes part of a storyline, especially when the truth and the fictionalized version are so divergent that it would cause viewers to feel differently.   Scott Right.  I can only imagine why Shonda Rimes decided to play the scene the way she did. I have no insight into why she did it. It certainly makes Anna look more sympathetic, and it supports the character’s role as the show’s anti-hero. Look, Delvey was convicted on eight charges, including second-degree grand larceny in theft of services and first-degree attempted grand larceny. But in watching the show, and I watch the show, you really can’t help but root for her. So certainly, Shonda Rimes may have had very good reason to play the scene the way she did, creatively. But this little twist in the narrative now exposes Netflix to liability. That’s the lesson for producers of docudrama. Any deviation from the truth needs to be examined from a legal risk perspective. If you need a scene to play a certain way in order to deliver a specific emotion or narrative, make up the scene and have the characters interact with made-up characters who display the necessary or needed defamatory traits.   Jamie That’s a good point. If the case doesn’t settle, I’m sure that Netflix will eventually bring a motion for summary judgment down the line. So, Scott, let’s be sure to report back then.   Scott Oh, we certainly will. Thank you for listening to this episode of The Briefing. We hope you enjoyed this episode. If you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. And if you have any questions about the topics we covered today, please leave us a comment.

The ongoing dispute between Brandy Melville and Redbubble over trademark and copyright infringement continues. Despite previous setbacks, Brandy Melville has filed a new lawsuit against Redbubble, alleging the sale of counterfeit products and copyright infringement. Scott Hervey and Jamie Lincenberg from Weintraub Tobin explore the history of the dispute, the claims made in the new complaint, and potential legal strategies moving forward. Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here. Show Notes: Scott We have covered Brandy Melville’s dispute with Redbubble, including the Ninth Circuit’s refusal to hold Redbubble liable for contributory copyright infringement because Redbubble didn’t know or have reason to know of specific incidents of infringement by its users and the Supreme Court’s refusal to take on Brandy Melville’s certiorari petition. Despite these significant setbacks, Brandy Melville seems determined to hold Redbubble accountable and has filed a new lawsuit against Redbubble. I’m Scott Hervey from Weintraub Tobin, and today I’m joined by Weintraub lawyer Jamie Lincenberg to talk about this update in the Brandy Melville Redbubble Dispute on this installment of “The Briefing” by Weintraub Tobin. Jamie, welcome back to the briefing. Jamie Thanks, Scott. I’m glad to be here and happy we can jump into this Brandy Melville Redbubble case again. Scott This is our third conversation about Brandy Melville Redbubble, and I have the feeling that it will not be our last. Before we dive into this new complaint, can you take us back through the history of the Brandy Melville Redbubble dispute? Jamie Sure. The dispute began in 2018 when Brandy Melville, the popular clothing retailer, brought a trademark infringement suit against Redbubble, an online marketplace that allows independent artists to upload their own designs for on-demand printing on various items of merchandise. Brandy Melville had found products on Redbubble’s website that infringed the company’s trademarks. Initially, the District Court had found Redbubble liable for both willful contributory counterfeiting of the marks and contributory infringement of the marks. Then, on appeal, the Ninth Circuit Appellate Panel overturned much of the lower Court’s findings. Scott And then, as we know, the Supreme Court denied certiorari to Brandy Melville’s petition, thus letting stand the Ninth Circuit’s holding. So here we are again. Brandy Melville filed a new complaint against Redbubble on March 29, 2024, which alleges that Redbubble is advertising, creating, and selling counterfeit Brandy Melville products, which incorporate exact replicas of the Registered Chilled Since trademark and Radio Silence trademark. They’ve added a couple of new causes of action that we’ll talk about, such as a claim that these products infringe and include exact because of the Registered Comic Eyes copyrighted design. Jamie The trademark claims made in this new complaint are mostly the same as the trademark claims Brandy Melville made in its case against Redbubble the first time around. So, Unless Brandy Melville alleges a failure to redress specific instances of infringement or infringers, it may seem the same result as the first case. Scott I agree. But it’s worth noting that This new complaint does seem to focus on this heightened standard imposed by the Ninth Circuit. Brandy Melville claims that Redbubble continued to sell counterfeit items bearing one or more of the exact same designs and brands even after Brandy Melville had previously reported them to Redbubble. Brandy Melville also contends that Redbubble has been, and continues to be aware of, and contributing to the infringement of its trademarks and that it creates and distributes the infringing and counterfeit goods to end consumers and facilitates financial transactions. Brandy Melville also includes as an alternative basis for its contributory trademark infringement that Redbubble has remained woefully blind to the infringement and/or counterfeiting of the Brandy Melville trademarks. Jamie Yeah, and the complaint also alleges direct copyright infringement and contributory copyright infringement claims against Redbubble. These claims weren’t raised in the first lawsuit. Scott That’s right. In copyright law, direct infringement occurs when a third party reproduces, distributes, displays, or performs a copyrighted work or prepares a derivative work based on a copyrighted work, all without authorization from the copyright owner. In support of its direct copyright infringement claim, Brandy Melville contends that Redbubble infringed Brandy Melville’s copyrighted works by displaying, distributing, and selling products bearing Brandy Melville’s copyright without their permission. Jamie Contributory infringement happens if a party, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another. Material contribution can be found where the party is providing services to the infringer and has an ongoing relationship with the direct infringer. In support of its contributory copyright infringement claim, Brandy Melville argues Redbubble has been and continues to be aware of and contributing to the infringement of Brandy Melville’s copyright on its site. The infringing products are prominently displayed and promoted on Redbubble’s website. Redbubble’s website is configured so that a search for Brandy Melville or other Brandy Melville trade names will lead directly to those infringing goods. Redbubble creates and distributes the infringing goods to the end consumer and facilitates all financial transactions. Scott Yeah, that’s right. That’s what Brandy Melville alleges to be the case. Now, contributory copyright infringement would require actively encouraging or inducing infringement through specific acts or by distributing a product, distributees use to infringe copyright. If the product is not capable of substantial or commercially significant non-infringing uses. Jamie I am certain there is enough evidence that Redbubble’s platform has commercially significant non-infringing uses, so the hook for establishing contributory infringement would hinge on showing that Redbubble actively induces infringement through making its platform available to users. Scott Yeah, and it sounds like it’s going to be tough to prove. Jamie Redbubble will certainly argue that it’s immune from copyright infringement based on user material posted to its websites, based on Section 512 of the Copyright Act, which shields online service providers from monetary liability as long as service providers cooperate with copyright owners to remove that infringing content. Scott Right. Yeah. You’re talking about the safe harbor and notice and takedown provisions of the DMCA. Brandy Melville would have to show that Redbubble in order for Brandy Melville to get around Redbubble’s safe harbor rights under the DMCA, Brandy Melville would have to show that Redbubble failed to remove specific infringing content after notice. It will be interesting to see how both Redbubble and Brandy Melville deal with this. I am certain that Redbubble will file a motion to dismiss, so we’re going to see that in the near future. Jamie Scott, why do you think Brandy Melville didn’t raise the copyright claim in the It’s an earlier lawsuit? Scott So this is me just speculating. I would imagine that they considered the copyright claim and thought that it would probably be precluded by the safe hardware provisions of the DMCA. And at that point, they maybe didn’t have enough evidence that Redbubble was failing to take down infringing content once they were receiving notice. It’s interesting the arguments that Redbubble is making in the trademark part of their argument and the copyright part of their argument relating to Redbubble’s failing to address specific instances of infringement. What Brandy Melville seems to be arguing, as opposed to arguing about specific actors, they are arguing about specific material that is being infringed. When you read their complaint, they talk about specific trademarks that are being infringed, probably by a wide variety of different users on the Redbubble platform. It’s a different take on this argument about redressing specific instances of infringement. They’re saying that Redbubble failed to address specific instances of infringement of specific pieces of Brandy Melville IP, not fail to address specific instances of infringement by certain infringers. So, we’ll see how that one plays out. I think Brandy Melville is going to have a tough time with its copyright claim, though, against Redbubble. Jamie What do you think their strategy will be with the second lawsuit? Scott There’s a business purpose to lawsuit sometimes, right? And I am certain that there is a strategy behind Brandy Melville filing this second complaint against Redbubble. And as long as they have a good faith basis upon which to file a claim, I suspect that Brandy Melville will continue to file multiple causes of that, multiple claims against Redbubble. And I believe that there’s a strategy to… Because as long as Redbubble is making money off of the transactions, as long as Redbubble is making more money off the transactions, then it costs Redbubble to defend these claims. Redbubble has no business incentive to deal with this, essentially, right? But the minute it costs Redbubble more to defend the claims, they’re going to have to come up with a business solution. Now, one of the other things that Brandy Melville could do is Brandy Melville could go after the printers. The way that Redbubble works is a user uploads an image, somebody buys an item with that image on it, and the order is sent to a local manufacturer shop that prints whatever it is, the shirt, the cup, the whatever. They’re independent from Redbubble. Well, Brandy Melville could go after those printers. There may or there may not, be an indemnity provision in the printer’s contract with Brandy Melville. But if Brandy… Sorry, with Redbubble. With Redbubble, right? If Brandy Melville starts suing enough of those printers, pretty soon it’s going to be hard for Redbubble to find printers that will do work for them. And although it’s not a great PR look, and they’d have to really think hard about the correct defendant in this, the direct defendant But Brandy Melville, could sue the users as well. They could send a message, Find the right defendant so that there’s not a PR backlash against Brandy Melville. But they could find the right plaintiff, write the defendant, sorry, and really go after them because both the defendant and the defendant would be liable for direct trademark infringement and direct copyright infringement. There’s no DMCA safe harbor that they would be able to take advantage of, and going after the printers as well. If you take off the printer infrastructure and you create this fear amongst the users of being sued by Brand new Melville, it might then create a business rationale for Redbubble to deal with this.  Jamie Yeah, that’s an interesting thought. I had not thought about the printer’s liability in all of this, but you’re right. That’s certainly an avenue that Brandy Melville could explore, although there’s much more to be considered with that in the same way that going after individual people that could cause some PR backlash if they’re going after local printers or things like that. Scott Yeah, I agree. You have to navigate the PR waters. All of a sudden go from being a victim to being the bully. But if they’re not getting results with the campaign of causing financial harm to Redbubble by constantly suing them, then they need to cut the legs out from under the chair in some other way. Jamie Right. Well, we’ll see where this second lawsuit gets them. Scott We certainly will. Absolutely. Thank you for listening to this episode of “The Briefing.” We hope you enjoyed this episode. If you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. If you have any questions about the topics we covered today, please leave us a comment.

Legal experts Scott Hervey and Jamie Lincenberg discuss Kim Kardashian's lawsuit over knockoff furniture, highlighting the importance of due diligence in endorsements. The case involves allegations of trademark infringement, false endorsement, and consumer deception. The legal battle between Kardashian, the Judd Foundation, and Clemens Design underscores the complexities of protecting intellectual property rights in the furniture industry. The foundation's insistence on authenticity and the potential repercussions for endorsing counterfeit products are also explored.

Legal experts Scott Hervey and James Kachmar discuss the recent district court ruling on OpenAI's copyright infringement allegations. They explore vicarious infringement, DMCA violations, and the complexities of AI training. Authors like Sarah Silverman are embroiled in the lawsuit against OpenAI for using their works to train language models.

Legal experts Scott Hervey and James Kachmar discuss Tennessee's ELVIS Act which protects musicians from AI clones. The bill safeguards a musician's voice by amending right of publicity statutes. They explore the implications on AI audio technology, civil liability, and copyright laws.

Legal experts Scott Hervey and Jessica Marlow discuss the risks brands face in social media marketing, from FTC compliance to intellectual property violations. Topics include ad spend projections, FTC requirements for brands, and legal risks in influencer promotions. They also cover copyright infringement, trademark issues, and the importance of securing rights for online content like memes and photos.